Articles Posted in Criminal Law

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Adams, 71, has been addicted to opiates for most of his life and has an extensive criminal history. In 2011, Adams pleaded guilty to conspiracy to distribute and possess with intent to distribute controlled substances, 21 U.S.C. 846 and 841(a)(1). After serving his custodial sentence, Adams began supervised release in July 2015. Starting in October 2015, Adams repeatedly tested positive for opiates.The Probation Office placed Adams in multiple drug-treatment programs, without success. After Adams tested positive for opiates three times between October 24 and November 15, 2016, the Probation Office filed another violation report. Following Adams’s failure of another drug test on November 30, it filed an amended report. At his hearing, Adams admitted that he unlawfully used controlled substances. The Guidelines range for the violation was incarceration of 21 to 27 months. After extensive discussion of Adams’s substance-abuse and the failure of treatment programs, the district court revoked Adams’s supervised release and sentenced him to 18 months of incarceration with no period of supervision to follow. The Sixth Circuit vacated the sentence. The court violated Adams’s due-process right when it based his sentence on unreliable information about rehabilitation and violated Supreme Court precedent, Tapia v. United States (2011), when it considered rehabilitation as a factor when calculating the length of incarceration. View "United States v. Adams" on Justia Law

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Blue gem coal burns hotter and cleaner than thermal coal, making it useful for producing silicon, a critical ingredient of computer chips and solar panels. Environmental regulations make it difficult to mine. Demand for blue gem coal outstrips its supply; it commands premium prices. New Century advertised itself as one of the largest blue gem coal companies in the country, falsely claiming to own land with valuable deposits and to have mining permits. By the time law enforcement caught on, the company had swindled more than $14 million from more than 160 investors. Eleven people involved in the scheme, including the mastermind, Rose, pleaded guilty. Phillips, who worked for New Century scouting property, went to trial. Phillips helped Rose, a NASCAR driver with little experience in the coal industry, identify land with coal-mining potential. The evidence portrayed Phillips as a coal-industry expert who helped New Century convince investors that it was legitimate. Phillips claimed he had no idea that the company defrauded investors. The jury convicted Phillips of conspiracy to commit mail and wire fraud but acquitted him of two money-laundering charges. The judge sentenced him to 30 months in prison. The Sixth Circuit affirmed, rejecting challenges to the sufficiency of the evidence and to evidentiary rulings. View "United States v. Phillips" on Justia Law

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Hamilton County Deputy Greer pulled over a female driver who had been drinking, had no driver’s license, and had an outstanding arrest warrant. Greer ran her license but did not arrest her. He had her drive to a secluded location where he had her perform oral sex on him. Later that day, the woman filed charges. A detective interviewed Greer that day. Greer said that he had run the woman’s license plate but had no personal interaction with her. Later in the interview, Greer said that he had not activated his police lights or detained her but that she had approached him with the sexual proposition. Greer eventually admitted to the woman’s version of the facts; investigators recovered his semen from the woman’s clothing. State charges were dismissed following a federal indictment. Greer pleaded guilty to witness tampering, 18 U.S.C. 1512(b)(3), in exchange for dismissal of other charges. The district court applied a Cross Reference to USSG 2X3.1, Accessory After the Fact, based on an underlying offense of the civil rights violation being investigated--aggravated rape. Greer argued that there had been no prosecution for rape and that there was not sufficient evidence that it was “committed.” Greer also unsuccessfully sought downward departures, arguing that this was “aberrant behavior” and that the woman falsely claimed that the sex was rape. The Sixth Circuit affirmed Greer’s below-guidelines sentence of 60 months. View "United States v. Greer" on Justia Law

Posted in: Criminal Law

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Pham pleaded guilty as a felon in possession of a firearm, 18 U.S.C. 922(g)(1). The government argued that Pham was subject to the Armed Career Criminal Act, 18 U.S.C. 924(e) (ACCA), which imposes a 15-year minimum sentence on anyone convicted as a felon in possession of a firearm who has “three previous convictions by any court” for a “serious drug offense” “committed on occasions different from one another.” Cole had a 2003 Tennessee conviction for conspiring to deliver ecstasy; two 2004 federal convictions for possessing with intent to distribute methamphetamine and ecstasy, each based on a February 12, 2004 sale to a confidential informant; and two 2004 federal convictions for possessing with intent to distribute methamphetamine and ecstasy, each based on a February 28, 2004, search of Pham’s residence. Pham objected, arguing that another 2004 federal conviction, for conspiring to possess with intent to distribute 50 grams or more of methamphetamine and ecstasy from October 2003 to February 2004, subsumed the other 2004 offenses because he committed them to further the conspiracy. The court found the ACCA applicable and sentenced Pham to 188 months of imprisonment. The Sixth Circuit affirmed, finding that the 2004 convictions counted as qualifying offenses, having occurred on different occasions under the statute. View "United States v. Pham" on Justia Law

Posted in: Criminal Law

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In 2008, Arise, a Dayton community school (charter school), faced declining enrollment, financial troubles, and scandal after its treasurer was indicted for embezzlement. The school’s sponsor sought a radical change in administration, elevated Arise’s former principal, Floyd, to superintendent, removed all board members, and appointed Floyd’s recommended candidates to the new board. Floyd set up a kickback scheme, using former business partners to form Global Educational Consultants, which contracted with Arise. Global received $420,919 from Arise. While Global was being paid, Arise teachers’ salaries were cut and staff members were not consistently paid. Arise ran out of money and closed in 2010. The FBI investigated and signed a proffer agreement with Ward, the “silent partner” at Global, then indicted Floyd, Arise board members, and Global's owner. They were convicted of federal programs bribery, conspiracy to commit federal programs bribery, and making material false statements, 18 U.S.C. 666(a)(1)(B), (a)(2); 18 U.S.C. 371; 18 U.S.C. 1001(a)(2). Two African-American jurors reported that they were initially unconvinced; the jury foreperson, a white woman, reportedly told them that she believed they were reluctant to convict because they felt they “owed something” to their “black brothers.” This remark prompted a confrontation, requiring the marshal to intervene.The Sixth Circuit affirmed their convictions, rejecting arguments based on the Supreme Court’s 2017 decision, Pena-Rodriguez v. Colorado. Although Pena-Rodriguez permitted, in very limited circumstances, an inquiry into a jury’s deliberations, this case did not fit into those limited circumstances. View "United States v. Robinson" on Justia Law

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The Bay Mills Tribal Police Department broadcast a lookout notice for Verwiebe after it received a report that he had assaulted his girlfriend. When officers located Verwiebe, he pulled a knife from his waistband, raised it over his head, and threatened to kill the officers. The officers eventually got control of him with the help of a bystander. In the police car, Verwiebe continued to threaten the officers and even spat on them. Verwiebe pleaded guilty to assaulting, resisting, or impeding a federal officer with a dangerous weapon. He was scored as a career offender under U.S.S.G. 4B1.1 based on his prior federal convictions for assault with a dangerous weapon with intent to do bodily harm, 18 U.S.C. 113(a)(3), and assault resulting in serious bodily injury, 18 U.S.C. 113(a)(6). At sentencing, the district court found that each conviction qualified as a crime of violence. The Sixth Circuit affirmed the sentence, applying the November 2016 Sentencing Manual. Because each crime combines common law assault with an additional element that, together, indicate “the use, attempted use, or threatened use of physical force,” both of them amounted to “crimes of violence” under Sentencing Guidelines section 4B1.2(a). View "United States v. Verwiebe" on Justia Law

Posted in: Criminal Law

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In 2011, Conzelmann pleaded guilty to distributing cocaine, 21 U.S.C. 841(a)(1); (b)(1)(C). The Sixth Circuit affirmed his sentence, as a career offender, to 188 months in prison. The Supreme Court denied his certiorari petition. Conzelmann filed his first 28 U.S.C. 2255 motion, asserting ineffective assistance of counsel for failing to challenge the career offender enhancement, and that government agents “compelled” him to sell drugs. The district court denied the motion. The Sixth Circuit denied a certificate of appealability. Conzelmann moved (FRCP 60(b)) for relief from judgment, arguing that his presentence report contained a factual error. The Sixth Circuit denied permission to file a second or successive 2255 motion. Conzelmann then moved for consideration under the Supreme Court’s 2016 “Mathis” decision, arguing that he should not have been classified as a career offender because his prior conviction for possessing chemicals to manufacture drugs no longer qualifies as a predicate conviction. The Sixth Circuit denied relief. A second or successive collateral attack is permissible only if it rests on newly discovered evidence or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” 28 U.S.C. 2255(h). Mathis did not announce a new rule of constitutional law made retroactive; the holding was dictated by precedent and merely interpreted the statutory word “burglary” in the Armed Career Criminal Act. View "In re: Conzelmann" on Justia Law

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Claimants, Wiggins and Allison, were at the Cleveland Airport for a flight to Orange County, California. The Drug Enforcement Administration (DEA), aware of their itineraries and that each had previous felony drug convictions, observed them engaging in conversation before they walked toward the security checkpoint. The government alleged, and Wiggins denied, that Wiggins consented to a search. Agents found $31,000 hidden in the lining of his suitcase. He could not answer why he was traveling with the money. He denied knowing Allison. An agent found $10,000 in Allison’s sock. Allison stated that he had won the money at a casino but could not provide details. A canine alerted to the odor of narcotics on the separate boxes containing the money. The government seized the funds and filed a civil in rem forfeiture complaint under 21 U.S.C. 881(a)(6), which allows the government to seize items it suspects were used in furtherance of criminal activity without charging the property’s owner with a crime. The district court granted the government’s motion to strike claimants’ claims to the currency. The Sixth Circuit reversed, noting that the government apparently moved to dismiss the claim before it engaged in any discovery. The government asserted that the claimant’s pleadings must do more than assert ownership and must provide sufficient detail to draft interrogatories allowing the government to test the claim of ownership. The procedural rules governing civil forfeiture actions do not demand such a heightened standard. View "United States v. $31,000.00 in U.S. Currency" on Justia Law

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For two years, Defendant and two others, engaged in sexual acts with eight children. Defendant photographed and videotaped those sexual acts. Child 1, then in sixth grade, testified that Defendant forced him to watch pornographic videos, and threatened to kill Child 1’s family if he told anyone. Child 1 and Child 7, then in third grade, described specific sexual acts. Child 6 testified that Defendant provided the children with liquor and cigarettes. After two children told their mother about Defendant’s conduct, police executed a search warrant on Defendant’s home and seized electronics that captured Defendant’s sexual exploits on the children. Defendant was charged with seven counts of Sexual Exploitation of a Child and/or Attempted Sexual Exploitation of a Child, 18 U.S.C. 2251(a) and (e); and two counts of possession of child pornography, 18 U.S.C. 2252A. Defense witnesses testified that Defendant engaged in activities at night that he would not be able to remember, such as preparing food and talking in his sleep. The Sixth Circuit affirmed Defendant's convictions, upholding the district court’s decision to allow the children to testify by closed circuit television; admission of evidence pertaining to Defendant’s: grooming activity, sexual assaults on children, activity with children, and attempted production of child pornography; and the imposition of a 2,880-month sentence. View "United States v. Cox" on Justia Law

Posted in: Criminal Law

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Defendant pointed a gun at an agent for a vehicle repossession company and threatened to shoot him and was indicted as a felon in possession of a firearm, 18 U.S.C. 922(g)(1). At his arraignment, Defendant acknowledged his presence in federal court, but challenged the court’s jurisdiction, stated that the government was “trying to charge [him] with” a “commercial crime” and that the government could not be the victim of a commercial crime. Defendant asked the judge if he was “forcing [Defendant] to contract,” and referred to himself as a “flesh and blood living being,” whose detention on “U.S. soil” was unconstitutional. Weeks later, Defendant’s appointed counsel moved to withdraw after Defendant became “combative” during a meeting. Defendant told the court that he was present “on special appearance, [as a] third-party intervenor,” claimed that he was a “beneficiary and executor to the legal estate of the decedent,” and made other irrational statements. The court ordered new counsel. Days before trial, Defendant filed a pro se notice reiterating his jurisdictional challenge as a “Moorish American National.” After his conviction, Defendant challenged the court’s failure to order, sua sponte, a mental competency evaluation (18 U.S.C. 4241(a)). The Sixth Circuit affirmed. Defendant’s arguments "correspond to meritless rhetoric frequently espoused by tax protesters, sovereign citizens, and self-proclaimed Moorish-Americans." Defendant expressed "fringe" views but did not exhibit irrational behavior before or during trial or “act in a way that called his competency into question.” View "United States v. Coleman" on Justia Law

Posted in: Criminal Law